01973218
11-12-1998
Patricia J. Gordon, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Patricia J. Gordon v. Department of the Treasury
01973218
November 12, 1998
Patricia J. Gordon, )
Appellant, )
) Appeal No. 01973218
v. ) Agency Nos. 93-2280R
) 95-4274M
Robert E. Rubin, ) 96-4062M
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
On March 6, 1997, the appellant filed an appeal with the Equal
Employment Opportunity Commission (EEOC) from a final decision of the
agency dated January 31, 1997 concerning her consolidated complaints
of unlawful employment discrimination alleging violations of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. As the record does not show that
appeal rights to the EEOC were enclosed with the final agency decision,
the appeal is deemed timely.<1>
ISSUE PRESENTED
Whether (1) the appellant was discriminated against on the bases of
age (50), reprisal (EEO activity) and disability (bipolar disorder
[perceived] and attention deficit disorder [ADD]) when she was placed
on a 90 day opportunity period commencing on February 22, 1993, and
(2) whether two of the appellant's complaints must be remanded to the
agency to provide her the opportunity to request a hearing before an
EEOC Administrative Judge (AJ).
BACKGROUND
The appellant filed complaint 93-2280R alleging issue 1.<2> Following
a separate investigation of this complaint, the agency notified the
appellant of her right to request a hearing before an AJ with regard
to that complaint. She requested a final agency decision without a
hearing.
The appellant also filed complaints 95-4274M and 96-4062M. The agency
defined complaint 95-4274M as alleging that the appellant was
discriminated against on the bases of age, disabilities (ADD and
dysthymia), sex, and reprisal when she was denied her within-grade
increase on June 23, 1995. It defined complaint 96-4062M as alleging
that the appellant was discriminated against on the above bases
when she was allegedly forced to resign effective December 1, 1995.
The agency conducted a consolidated investigation of complaints 95-4274M
and 96-4062M.
It determined that complaints 93-2280R, 95-4274M and 96-4062M were
intermingled, and stated that complaints 95-4274M and 96-4062M were mixed,
and issued a final decision on all of them finding no discrimination.
The final decision in the record was enclosed with appeal rights to
the Merit Systems Protection Board (MSPB), not the EEOC. Nevertheless,
on appeal the agency contends that at the time the final decision was
issued, the appellant was informed that she could appeal the "non-mixed"
complaint 93-2280R to the EEOC.
According to an MSPB initial decision dated April 22, 1997, the
appellant filed an MSPB appeal on March 6, 1997 that contended her
removal of December 1, 1995 was coerced and which contested the June 23,
1995 denial of her within-grade increase. The MSPB initial decision
dismissed the appeal for lack of jurisdiction. With regard to denial of
the within-grade increase, the initial decision reasoned that for it to be
appealable to the MSPB, the employee must first seek reconsideration from
her employing agency, and the appellant did not do so. With regard to the
separation, the MSPB reasoned that her resignation was not involuntary,
and an employee may not withdraw a resignation that occurred as a result
of a settlement unless the settlement is invalid or the agency breached
it, which the MSPB indicated was not the case. The Board denied the
petitioner's petition for review of the initial decision.<3>
ANALYSIS AND FINDINGS
Complaints 95-4274M and 96-4062M
In view of the MSPB's position that it does not have jurisdiction over the
matters in these complaints, there is little point in continuing to view
them as "mixed case complaints" as defined by 29 C.F.R. �1614.302(a).
They will thus be considered "non-mixed" matters and processed by the
agency in accordance with the order below. See Schmitt v. Department
of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); 29
C.F.R. �1614.302(b).
Complaint 93-2280R
As this complaint was investigated, and the appellant was provided the
right to a hearing before an AJ with regard to this complaint, which
she declined, we will adjudicate this complaint herein.
The appellant was a Revenue Agent, GS-12. In December 1992, she was
issued an annual appraisal by her supervisor (S1)(female, age 46), which
was also signed by a reviewing official (RO)(male) with an overall rating
of unacceptable. It rated the appellant as not having met two critical
elements, i.e., planning and scheduling, and examination techniques,
and provided supporting examples. The appellant submitted a rebuttal
to the appraisal arguing that she met these critical elements.
Thereafter, in February 1993, S1 issued the appellant a notice of
unacceptable level of competence resulting in an opportunity period.
The notice provided many supporting examples of unacceptable performance.
Some examples with regard to the planning and scheduling included
spending excessive time to prepare a pro forma generic plan for a case,
an inability to formulate a realistic plan for completing examinations,
prematurely ordering documentation and ordering too much and immaterial
documentation, not taking notes of her case activities, being far off
on estimations of appointment times, not spending enough time in the
field, spending too much time on cases and not timely closing them, and
inefficiently hopping from case to case. Some examples with regard to
failing to meet the critical element of examination techniques were not
timely conducting an examination, identifying and developing immaterial
issues, and developing immaterial facts.
The above examples were discussed in the context of specific cases.
In her investigative affidavit, the appellant referred to her rebuttal
to the performance appraisal. She also indicated that she had a poor
relationship with S1 and requested a transfer, but the request was
initially denied.
The threshold question in a case of discrimination based on disability is
whether an individual is a person with a disability within the meaning of
the Rehabilitation Act. Under 29 C.F.R. �1614.203(a)(1), an individual
with a disability is defined as one who (I) has a physical or mental
impairment which substantially limits one or more of such person's major
life activities, (ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment. Major life activities include
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).
We need not address whether the appellant's ADD rose to the level of a
disability because the preponderance of the evidence demonstrates that
agency management was not aware of the ADD until after the opportunity
period was completed. The appellant's ADD was first diagnosed on May
18, 1993, and the physician's letter setting forth this diagnosis was
written in July 1993. Further, in a July 1993 response to a proposed
personnel action by the agency against the appellant, her representative
wrote that the above "opportunity period did not consider and provide
reasonable accommodation for [the appellant's]...ADD...which was unknown
to management and not formally diagnosed until 5/18/93, three days prior
to the end of the opportunity period."
In a prior procedural appeal to the Commission on complaint 93-2280R
filed after the investigation, the appellant averred that management
learned of her ADD prior to the opportunity period. She did not, however,
explain the circumstances of this, or attempt to reconcile this with her
representative's prior statement. In the instant appeal, the appellant in
May 1997 submitted a "chronology of events" that elaborated she learned
of her ADD on December 31, 1992 when she read a book on the subject,
and that she told an agency clerk who later admitted to the appellant in
April 1994 that she had passed this along to S1 in January 1993. This is
not corroborated by the record. As the agency was not aware that the
appellant had a disability prior to and during the opportunity period,
she has failed to prove discrimination in violation of the Rehabilitation
Act.
In the investigation, the appellant stated that her prior second
level supervisor (S2)(male, age 44), who left her chain of command in
August 1991, perceived her as being different. On appeal, the appellant
elaborates that S2 believed she had bipolar disorder. The appellant does
not explain how she came to this conclusion, and it is not supported by
evidence in the record. S2 stated that he advised the appellant about
the Employee Assistance Program (EAP) due to her poor performance and
her having an outburst, but this does not show that he perceived her as
having the disability of bipolar disorder or any other disability.
With regard to the appellant's reprisal claim, the record reflects that
she sought and had EEO counseling with regard to the opportunity period
on March 1, 1993. She contends that S1 learned of this counselor
contact the same day. In order to establish a prima facie case of
reprisal discrimination, the appellant must show that: (1) she opposed
discriminatory practices or participated in EEO proceedings, (2) the
agency was aware of her protected activity, (3) she suffered some adverse
action, and (4) absent other evidence tending to establish retaliatory
motivation, the adverse action followed her protected activities within
such a period of time that retaliatory motivation can be inferred.
Hochstadt v. Worcester Foundation for Experimental Biology, 425
F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976).
The appellant failed to establish a prima facie case of reprisal
discrimination. Even if we accept her contention that S1 learned of
her EEO activity on March 1, 1993, this occurred after the notice of the
90 day opportunity period. Continuing the opportunity period does not
raise an inference of reprisal discrimination. Accordingly, we find no
reprisal discrimination.
Since the agency articulated legitimate, nondiscriminatory reasons
for issuing the opportunity period, as set forth below, we may proceed
directly to whether the appellant demonstrated by a preponderance of the
evidence that the agency's reasons were merely a pretext to hide sex
and age discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983). S1 explained that she issued
the opportunity letter because the appellant failed to meet two critical
performance elements of her position. The appellant disputes that she
failed to meet these elements. She has failed to show, however, that S1's
assessment was incorrect or that S1 did not believe her own assessment.
In an effort to prove animus, the appellant stated that S1 belittled
her with remarks suggesting that the appellant seek a minimum wage
job, accused her of personal improprieties with a male manager, called
her irresponsible and lazy, and so forth. S1, however, denied making
such remarks. The appellant also contended that despite having records
available to them, S1 told her the Branch Chief wanted to know when
she would be eligible to retire. S1 countered that she did not recall
this, but it may have occurred. S1 explained that the Division was over
staffed, so for planning purposes she was periodically asked to find out
who may be retiring or otherwise leaving for other purposes. S1 stated
that if she did not have prior knowledge, she would ask employees as
this took less time than researching the information. The appellant
has failed to prove pretext or otherwise prove sex or age discrimination.
CONCLUSION
The Commission finds no discrimination with regard to complaint 93-2280R.
Complaints 95-4274M and 96-4062M are remanded in accordance with the
order below.
ORDER
By operation of 29 C.F.R. �1614.302(c)(2)(ii), the agency is directed
to process Complaints 95-4274M and 96-4062M as "non-mixed" matters
pursuant to 29 C.F.R. �1614.109 et seq. The agency shall acknowledge to
the appellant that it has received the remanded matters within 30 days
of the date this decision becomes final. Within the same time period,
the agency shall request the appropriate EEOC District Office to schedule
the appellant's complaints for a hearing, unless she requests a final
decision without a hearing. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision appealable
to this Commission within 60 days of receipt of the appellant's request.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Nov. 12, 1998
_______________ ______________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1Further, the agency sent by certified mail the final agency decision to
the appellant's former representative. However, by letter which the
agency received on January 24, 1994, the appellant notified it that she
no longer had representation. The appellant states on appeal that she
received the final agency decision on February 4, 1997.
2The appellant raised the basis of disability for the first time during
the investigation, and the agency accepted this basis for investigation
with regard to ADD. On appeal, the appellant clarifies that she also
wished to raise the disability of perceived bipolar disorder. As there
is sufficient information in the record to adjudicate this latter claim,
we will do so here. Sanchez v. Standard Brands, Inc., 431 F.2d 455
(1970). Further, during the investigation, the appellant withdrew the
basis of reprisal, but states on appeal that she still wishes to pursue
this basis. We will permit her to do so and adjudicate it herein. Id.
3Gordon v. Department of the Treasury, MSPB Docket Nos.
DE-0752-97-0444-I-1 and DE-531D-97-0445-I-1 (October 3, 1997).